Lawyers have warned that the High Court’s finding that President Uhuru Kenyatta breached the constitution by initiating and promoting the Building Bridges Initiative (BBI) could be used as to impeach him.
The declaration opens the door for any Kenyan to start the process for his impeachment, they said.
In the ruling on Thursday, the judges said President Kenyatta contravened Chapter 6 of the Constitution, and specifically Article 73(1)(a)(i), by initiating and promoting BBI contrary to the provisions of the Constitution on its amendment. The judges said the President failed to respect, uphold and safeguard the Constitution.
Lawyer Charles Kanjama said unless the court's declaration is set aside, President Kenyatta stands impeachable.
“Any MP who wants to impeach the President has the basis to institute the impeachment motion. Such a motion is strengthened by the president’s failure to appoint the 41 judges. There have been grounds of impeaching President Kenyatta even before," said Mr Kanjama.
But Solicitor General Ken Ogeto disagreed with the finding that the president had breached the constitution.
“That is one of the erroneous aspects of the decision. It is not the only one but is one of the grounds for appeal,” Mr Ogeto told Saturday Nation .
Mr Elias Mutuma, who was part of the team that argued the case, said he totally agrees with the finding of the five-judge bench.
“The President took an oath of office and swore to defend and uphold the constitution. He is bound by that oath and he is liable for any breach,” he said.
An MP, supported by at least a third of all the members, may move a motion for the impeachment of the President on the grounds of gross violation of a provision of the Constitution or of any other law. The motion must be supported by at least two-thirds of MPs.
Others not only disagreed with the finding, but also defended President Kenyatta’s push for the amendment of the constitution.
Lawyer Kibe Mungai, for example, disagreed with the decision saying he believes the President acted in good faith when he came up with BBI.
“I have difficulty with the finding. He gave his reasons for coming up with the process and he was justified. That doesn’t make it a moral or ethical failure or make it criminal,” he said.
But the lawyers agreed that impeaching the President will not be an easy task, especially since Parliament endorsed BBI.
Violation of the Constitution
According to lawyer Suiyanka Lempaa, the judgment was a judicial pronouncement while impeachment is a political process.
“Who is going to move it? It is a complicated scenario,” he said.
During the hearing, the petitioners and the Attorney-General were in agreement that if the President flouts the Constitution, then civil proceedings against him, during his tenure, would be in order.
The Judges agreed saying, “Assuming, in his tenure, the President embarks on a mission that is not only clearly in violation of the Constitution but is also destructive to the nation, would it not be prudent that he should be stopped in his tracks rather than wait until the lapse of his tenure by which time the country may have tipped over the cliff?”
“On the specific question of whether the President can be sued in his personal capacity during his tenure, our answer is in the affirmative because it is apparent from Article 143(3) that the President or any other person holding that office is only protected from such actions ‘in respect of anything done or not done in the exercise of their powers under this Constitution,” the judges said.
The court faulted the president saying he does not have the constitutional mandate to initiate constitutional amendments through popular initiative under Article 257 of the Constitution.
